This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. It also includes comment about open transparent and accountable government and related issues generally drawing on developments in Australia and overseas. Information contained on this site is general in nature and does not constitute legal
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Thursday, January 05, 2012

Information access and piecing together the School for Killlers story

The information access issue is a minor but important part of the shocking Tamworth Institution for Boys story reported before Christmas by Geoff Thompson of the ABC Investigative Unit. The most important aspect, is what went on there and how it was allowed to happen. The Institution for Boys, for absconders from other boy's homes aged 15-18 during the period 1948-1976, sounds like Port Arthur for hardened criminals a hundred years earlier.

The good order of society and the well being of its members-the public interest-is advanced by such a disclosure about the harsh and inhumane treatment of boys by a government institution under the mantle of "child welfare." You have to wonder what steps were taken in the past to hush it up,or if any steps are being taken now to get to the bottom of it. And dare I say, apologise or attempt to compensate for those still with us.

But what of Thompson's success in obtaining from the
NSW Department of Family and Community Services a comprehensive list of
boys sent there, then matching the data with other available information to
link names to 35 violent deaths, and to
ascertain the "school" was attended by some of Australia's most infamous
killers and criminals,
including Arthur Stanley 'Neddy' Smith, George Freeman, Kevin Crump,
James Finch, Archibald McCafferty and Billy Munday?

Thompson in his report said the information resulted from a "Freedom of Information" request. If so, the application would have been made before 1 July 2010 when the NSW act was repealed. Alternatively Thompson may have used FOI as shorthand for the replacement act-and bigger mouthful-the NSW Government Information (Public Access) Act, perhaps not referred to in his stories because it is unknown to about 99% of the audience.

Thompson reported that the department, citing privacy concerns, withheld surnames but released a full list of given names and date of birth for boys sent there. He was able to match this with other (unspecified) information to establish Tamworth was a "school for killers."

The other information used to make the connection with known and notorious criminals may have been publicly available court records-there must be plenty of them for this crowd.

Whether the information released also helped Thompson identify and track down others is unclear. For the story Thompson interviewedsix former inmates who did not go on
to commit serious offences.

A given name and DOB of a person detained as a boy many years ago wouldn't usually get you far in tracking someone down in Australia. DOB information is not in the public domain. Boys in an institution wouldn't be in the phone book or, if under 18, on the electoral roll in those days.

The FOI/
RTI-GIPA decision maker in Family and Community Services probably concluded that release of information in this form
avoided the need for third party consultation (probably impractical in
any event because of lack of current contact information and the numbers involved), sufficiently de-identified the information so that it was no
longer "personal information," and that disclosure was not
contrary to the public interest (to use the GIPA test).

On the face of things, all reasonable judgments and within the bounds of the law.

Unfortunately my attempt to contact Thompson through the ABC Investigative Unit to ask about aspects of his big FOI find came to nothing. We'd still love to hear, Geoff.

The potential to match given name and DOB from many years ago with other information to identify a person years later highlights a potential new "mosaic effect"- combining seemingly innocuous bits of information with other available information to form a more meaningful whole. The mosaic effect has long been an issue in freedom of information law/lore, most recently considered in this Federal Administrative Appeals Tribunal decision but the subject of more detailed consideration in a 1988 AAT decision Slater and Cox [at 28].

Those cases were about guarding against non-exempt information released in response to a number of FOI applications being pieced together to build information that might otherwise be exempt.

The Tamworth case raises the broader question whether decision makers in releasing information need to be mindful of other data aggregation possibilities.

"I’m not a privacy nut but we’re moving into an age where just about any
information you want to find out about a person could be found out with
an Internet browser. Data aggregation websites are exploiting this
“Mosaic Effect” culling data together from social networks, online
auctions, online real estate and tax databases and wherever else they
can get grab information about people. Like it or not, sooner or later
you won’t have to ask someone “boxers or briefs”, you’ll pay $36 to some random data aggregator and you’ll find out the person’s waist size too."

In the US a lot more information about individuals than is the case here-DOB, driver's license, car registration, for example-is in the public domain.

The issue for the decision maker In the Tamworth case was whether the information in question constituted personal information as defined in GIPA: information about a person whose identify is apparent or "can reasonably be ascertained from the information or opinion."

A given name, surname and DOB in a list of attendees at an institution, even 40-60 years ago is personal information, in the GIPA context, to be disclosed only where on balance not contrary to the public interest. The privacy considerations in this context should be given considerable weight. (See NSW Information Commissioner Guideline 4: personal information as a public interest consideration under GIPA

Given name alone as it appears in such a list wouldn't constitute information that enables identity to be ascertained. Unless other factors specified in the act weighed against disclosure, the information should be released.

Similarly given name and DOB, in the normal course of things.

Of course the decison maker in this case could have decided for good measure to redact DOB as well, in which event Thompson may have never got his story, and most of us still wouldn't know about the school for killers.

Whether information access law needs to set a higher standard that somehow requires the decision maker to have regard to the (largely unknown and growing) possibilities for supplementing released information through data aggregation is another issue.

Nigel Waters of the Australian Privacy Foundation and Australian Information Commissioner Professor John McMillan have had this recent exchange-and disagreement- about whether Commonwealth law (generally similar to NSW) and the commissioner's guidance gives sufficient weight to privacy considerations in the context of open government.

4 comments:

Hi Peter. When researching in this area it is actually much more productive to talk to people face to face than through FoI - maybe more in conjunction with FoI. Care leavers, because of their desire for transparency, as a general rule - despite the taboos about privacy in juvenile records, they want these injustices to be known and prevented from recurring.They're all remarkably brave.The predators that perpetrated injustices against children in the ward system are(still) opportunistic and capitalize on that privacy rule to protect themselves.They were often in privileged positions that determined record-keeping policy, and also released false info to media & police to cast those individuals in a disparraging light, so they'd be forever disempowered/vilified & subsequently unable to prosecute for childhood abuse.From what I've seen, the authorities still protect those influential paedophiles/abusers, by denying docs with damaging info about their departments exist, and FoI is the gateway for official confirmation that those terrible practices were not just condoned, they were authorized. The language the perps use in those aged documents is horrifying - very blatant + very sensitive.So, I think care leavers sometimes combat that stark & overwhelming oppression with their disarmingly forthright manner about their experiences. As Estelle Blackburn would say, talking is also good for the soul - liberating. The media branding them "killers," or "notorious," instead of "victim survivors," is just furthering the interests of the perps and corruption. The media system writes them off as unworthy victims - not palatable for news consumption. Many have never had a chance to tell their story, accurately, without news-spin. Ever read The Unknown Terrorist?

I can certainly see what you mean about the privacy issues, Peter. There is a huge potential for the mainstream media to abuse the vulnerability of victim survivors, which again is why it becomes so important for writers/journos to talk with those survivors in the first instance, hear their stories and pay them respect for the shocking abuses and lies that they've lived through. Their knowledge is the most accurate point of reference. Really, even if the department gave access, the integrity of any documents has to be considered compromised - historically, they have been.

btw I'm not too shook on the idea of mass releases of juvenile records/docs to unrelated people. If care leavers choose to confide in a journo about any other victim survivors then there is an ethical and legal obligation on us to not identify them in any published material without their consent.

Is it possible that the ABC may have actually been protecting a source(or trying to) with this strange FoI scenario that doesn't seem to quite gel?

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.